Taking me to court

Discussion in 'Carpenters' Talk' started by Chippie mac chipface, Jan 8, 2023.

  1. Chippie mac chipface

    Chippie mac chipface Active Member

    I would think that delayed by covid would have more weight than delayed by parts?
     
    rogerk101 likes this.
  2. Mr Rusty

    Mr Rusty Screwfix Select

    I think you know already what is wrong with your Ts & Cs!! You are going to have to rely on the email trail putting the contract in place and your entitlement to be paid for the work done to date - you should still win, but it would be far more certain if your contract said what the deposit was for, who has a right to terminate or cancel the contract and what happens then. I think you should have a look at other small traders and see what their Ts & Cs say. Here's a good one https://www.thewindsorhandyman.co.uk/Terms/ (I have no connection at all - purely an example) and then rewrite yours - there is quite a bit of irrelevant nonsense in it - for example you simply cannot cap your liability against insurable risk, reference to interest and consequential loss is unenforceable for consumer contracts

    Of course - just an example, but unless the completion date is contractual, you don't need to justify delay at all.
     
  3. Chippie mac chipface

    Chippie mac chipface Active Member

    I have been paid for the work to date as I am holding the deposit for the cabinet which I made and the one he canceled. He is taking me to court to recover the monies.
     
  4. Mr Rusty

    Mr Rusty Screwfix Select

    so justify it in your defence with the materials you have bought and time spent, and you should win. You are entitled to be paid for this. Time includes, design, admin for quotes, site visits etc etc.
     
    Rosso likes this.
  5. The Happy Builder

    The Happy Builder Screwfix Select

    B&Q were taken to court for delays in fitting a kitchen and sent a barrister along with a solicitor to a small claims court, because if they lost the case B&Q could have had lots of customers try to claim against them.

    The court ruled B&Q did not have to pay, because the contract did not agree a completion date, so there wasn’t a date the work had to be completed by.
     
  6. Richard_

    Richard_ Screwfix Select

    Looks like you've just about enough in writing.

    Formation of contract - Client acknowledged T&C in email (but better to have client return a copy with ink signature)

    Timescale - Client acknowledged in email that they might need to wait and time not a factor

    Cancellation - Clause 11 refers to put of pocket expenses. Not as explicit a stating payment for work/material but that's a quibble IMHO. I suspect "out of pocket expense" could be deemed to exclude profit. It infers that you'd need to list those expenses with receipts . More useful clause would be explicit that client is liable for manufacturing costs noted on the quote once work had started, you'd need to list manufacturing and fitting as seperate items in your quote for this to work.

    Title - Clause 2 allows you to retain the goods until the client pays. Client refused to pay hence surrendering their claim for the goods. Their refusal to pay gave you authority to break up the cabinet. In future might be useful to tell them in writing that you are invoking this so they can't change their mind later on. The T&C don't require written notice so IMHO you could do this because the client telling you they would not pay was the point when the contract ended. After that you could do what you wanted.
     
  7. Richard_

    Richard_ Screwfix Select

    I agree if it's in the contract.

    The contract in this case gives grounds to claim "out of pocket expenses" so will only cover costs to point of cancellation. So can't claim for additional costs such as ordering further materials after being told of cancellation. Could also argue can't claim for orders for undelivered materials that could have been cancelled (where that is possible).

    IMHO breaking up the cabinet can be seen as the contractor ascerting right to title rather like builders who remove installed materials and goods from sites if bills are not paid. The contractor isn't obliged to reuse the materials and could have burnt it all but having reused the materials he can't claim those materials as being out of pocket expenses?

    For example a builder leaves a box of screws on site can claim for the "out of pocket" expense in this contract. If they take the box of generic screws home then they can't be claimed as out of pocket expense. If they were specialist fixings or bespoke boards that can't be reused then they are an out of pocket expense.

    Obviously I'd claim for everything if I was the contractor but if I was the client I would argue an unused generic box of 50mm screws in the contractor's van is not an out of pocket expense.
     
    Last edited: Jan 9, 2023
  8. rogerk101

    rogerk101 Screwfix Select

    The fact that he paid your deposit is considered as his acceptance of your terms and conditions, regardless of whether he read them or not. If he disagreed with anything on them, he should have found a compromise with you BEFORE paying your deposit.

    A deposit is paid in good faith that you will use it to block off your time (that you would otherwise be selling to other customers), as well as to cover the costs of the materials you will be dedicating to this project. The fact that this is a project for the creation of two CUSTOM items means that they are being made for the customer, and are considered of no use to anyone else.
    The small claims court should rule in your favour, i.e they should not rule that you have to refund the customer any of the deposit he paid you. However, you could fight fire with fire, and counter sue him for more than he has already paid you, because you can probably prove that you have spent more time and money on this now than he paid for with his deposit.
    If the customer had any sense, he would drop the whole thing, or he risks being ordered to pay more than he has already.
    Don't let the bu88er off the hook ... fight him to the end.
     
    Abbadon2001 and Richard_ like this.
  9. Chippie mac chipface

    Chippie mac chipface Active Member

    I thought of that but I will have to pay to issue a claim, I have done that before and it does get quite expencive.
     
    rogerk101 likes this.
  10. Alan22

    Alan22 Screwfix Select

    I think the point was that the customer asked for a time and your not giving one is the break of contract, rather than his asking for a refund which appears to be a subsequent action, I read it as typical contrary customer 'this is taking ages, if he doesn't give me a solid date I'll tell him I want a refund' sort of stuff.

    I'd want to impress upon the court that you want to finish the job and have a satisfied customer, irrespective of any 'misunderstandings' and setbacks, this is essentially what he is accusing you of not doing.
     
  11. Richard_

    Richard_ Screwfix Select

    You should put your own estimate of the true cost in your submission to show that your costs are equal or greater than the deposit. Showing the costs are a lot more than the deposit supports your case. I'd say that you seek recovery of the full costs so the client is aware of what might hit them - even if you privately plan to write it off. You could also ask the court to instruct the client to pay your true costs, no harm in asking and it reinforces your point.
     
    rogerk101 likes this.
  12. Rosso

    Rosso Screwfix Select

    Out of curiosity- how much advance payment did you actually receive? 50% of the kitchen unit, or 50% of TV unit and kitchen unit? Did you refund all or part of the deposit for the tv unit when you accepted his cancellation for that?
     
  13. Richard_

    Richard_ Screwfix Select

    Slight digression - A contract can only require reasonable costs and cannot require punitive costs that might be deemed to be penalty charges. This is very unlikely to be an issue with trades people because staged or upfront payments are linked to the costs of materials and labour.

    If you quote £20k for a fitted kitchen and ask for £15k deposit for manufacturing the units you'd struggle to justify to a court that you could withold all £15k if the client cancelled after one day and you hadn't started making anything.

    However a window fitter with a similar £20k contract might be able to withold the £15k deposit if their window supplier had a no cancellation policy once an order is committed to the production line, but in that case the customer would be entitled ask for the actual windows to be delivered and not fitted. IMHO
     
  14. stevie22

    stevie22 Screwfix Select

    Seems to me that you offered to get the thing fitted by another fitter and this was declined. Given all the Covid chaos that was going on this was eminently reasonable on your part and totally unreasonable on the customer's part.

    To me that should tip the judgement your way as my feeling has always been that small claims is more about common sense and justice rather than legal/contractual BS.

    Good luck
     
  15. Chippie mac chipface

    Chippie mac chipface Active Member


    Thanks for this but it does not protect me making bespoke furniture.

    Within these T's nd C's if the client cancels a piece of furniture more than 48 hours before date of commencement I could only charge 15% of the total price and have to return 35% of the deposit (deposit being 50%) even though I could have already spent 45% of the deposit on specialist materials,
     
  16. Mr Rusty

    Mr Rusty Screwfix Select

    It was more an example of a well thought out Ts & Cs than something to copy verbatim... Obviously your own need to reflect what you need. Good Ts & Cs don't need to be clever with all sorts of pseudo legalese that can never be enforced - just plain english what you both agree/contract and what happens if things change or go wrong. Should also clearly identify what is included and excluded so there is no confusion.
     
  17. Chippie mac chipface

    Chippie mac chipface Active Member

    Thanks for that.

    I have pinched some from elsewhere which suit my needs.

    And thanks for your help with everything.
     
  18. Chippie mac chipface

    Chippie mac chipface Active Member

    If anyone is interested I agreed to HM Courts mediation regarding this matter.

    Reading between the lines it appears that the client has taken legal advise - I dont think he liked it.

    It is agreed that I fit the cabinets within the next two months and that I pay him no money. As you know they have already been made but need to be re assembled.

    I do though get to keep all the monies paid to me which is the full ammount for the cabinet in question and around £350.00 more which I am holding as a part deposit for another cabinet which he also canceled.

    The reasons I think he has sought legal advise are;

    He originally asked for the cabinet to be fitted within 4 weeks.

    This is in full and final payment

    He has had to pay court costs from his own pocket

    He has dropped an interest payment claim

    He failed to issue a 14 day pre action letter

    I threatened a counter claim.

    I dont know what anyone else thinks but I am happy - £350.00 up on the job due to toys being chucked out of the pram.

    Thanks everyone, esp Mr Rusty.

    I have found some terms and conditions regarding this and if anyone is interested I can put them up for discussion / use by others

    Beer tonight ;-)
     
    MamaBear, Jord86, Kingscurate and 7 others like this.
  19. stevie22

    stevie22 Screwfix Select

    Grand result Chip. Allow me to be the first to congratulate you. Enjoy the beer.
     
    Kingscurate and rogerk101 like this.
  20. Chippie mac chipface

    Chippie mac chipface Active Member

    Cheers, many thanks
     
    Kingscurate likes this.

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